Titles in business are considered very important: President, CEO, VP etc……law firms the same thing…Partner, senior partner, member, associates.  But did you know there is one title in a law firm that can cause confusion and sometimes affect insurance coverage?  The title OF COUNSEL. 

I’ve been told, ask 10 lawyers the definition of OF Counsel and you’ll get 10 different answers.  At some point, we can discuss and try to narrow down a more specific definition of what an OF Counsel is but today I want to point out how the term OF COUNSEL may affect your legal malpractice insurance coverage at retirement.

Most policies provide what is called a free retirement tail endorsement when an attorney from the firm retires.  Usually there are a few requirements that must be met in order to qualify for that free tail.  On some policies OF COUNSEL attorneys are not eligible for the free tail strictly because they are titled OF COUNSEL.  This usually is not an issue for a solo but for firms with 2 or more attorneys it can cause great concern.

I have seen instances where firms with 3 or 4 attorneys give the title OF COUNSEL to the founding member of the firm with no consideration of how this could affect the founding members coverage, his or her estates coverage or the retiring attorneys financial position during retirement.  Usually the change to OF COUNSEL is a result of the attorney working less hours and nothing more.  In this case it seems a shame for the attorney to lose coverage and in some cases not be able to get back because of working less time?  

So before changing anyone’s “title” to OF COUNSEL and printing new letterhead check your legal malpractice policy. Contact your broker/carrier and ask them for an interpretation of the coverage.  Make sure the change to OC won’t affect the retirement tail coverage. OR if it does you know and are ok with any change.  Who knows, maybe it won’t change but then again maybe it will.  Better safe than sorry.

I’m always surprised at the number of people who don’t take full advantage of the ancillary benefits that come with malpractice insurance programs. I know that most of the carrier programs we market have several useful benefits outside of the policy that can help a firm.

Items like: online risk management classes, some of which are eligible for free CE and possible premium discounts, samples of engagement, disengagement, and non engagement letters, as well as suggestions on how to implement a conflict of interest system.

You can also find examples of how to implement a dual calendar system and comments on the latest programs available in the marketplace for calendaring, client intake, and billing. Not all outside the policy benefits have everything we mentioned, but they do have some combination.

Keeping Your Documents Secure and Accessible

As an agency, we’ve developed a client portal with 256-bit encryption for your security. Current clients can use this portal to gain access to the previous applications you’ve submitted to us as well as your past and current legal malpractice insurance policies.

I get calls, some urgent, from insureds asking if I can resend the policy as they cannot locate it in their office. Imagine how convenient it would be if you could just go to the client portal and see all the information you needed online!

So if you’re one of the insureds that are using the additional benefits available to you from your legal malpractice insurance program, good for you. It can and will make your law practice better and maybe even reduce the chances of being sued. If you’re not, I would encourage you to at least take a look at what is available; you might be surprised. Oh, and did I tell you it is usually free?

Our July Legal Malpractice Awareness Month would not be complete without some discussion about legal malpractice claims. I get asked a lot about claims and if there are really a lot of lawyers who get sued for legal malpractice. I always answer the same way: yes, there are a lot of claims filed against lawyers.

I recently had a discussion with a legal malpractice claims analyst, and he commented that the insured’s question or concerns today should not be “if I get sued, but rather “when I get sued and how many times.” I think that sums it up: lawyers being sued is not uncommon, and it does happen with frequency.

I believe that the reason most people don’t hear about lawyers being sued that often is that most lawyers don’t want to talk about it. It is not a pleasant experience to have your work questioned or accused of making a costly mistake. I understand that.

If you do find yourself in the position where someone is alleging that you made a mistake on their case or you find on your own that you made a mistake, don’t make it worse by ignoring it or hoping it goes away. It never does, and refusing to acknowledge it will only make it worse.

There is no scarlet letter, no stoning, and no public humiliation for reporting a claim. Chances are, several of your colleagues have gone through the same thing. Call your carrier, the hot line, or your broker. Get the issue reported immediately so you can get the right people involved early on. You will be glad that you did.

One of the harder questions that lawyers face when purchasing or renewing a legal malpractice insurance policy is: what policy limits and policy deductibles should I choose, and are those limits sufficient? 

No one wants to buy more coverage than they need or have a deductible that never gets satisfied. Unfortunately, there just isn’t a stock answer. Since every law firm is different, the policy limits and deductible chosen should be based on the individual characteristics of the firm. Never choose limits and deductibles based on what your friend or the law firm down the street has. Take some time to consider the matter. No one knows your practice any better than you do. 

Consider the type of law or cases your firm handles. What is the value of the cases you handle? What is the largest case value that you handle? What is the smallest? Is there an “average” value? How many lawyers are in your firm? What is the economy like? Lawyers seem to get sued more often in a bad economy than in a good one. These are just some of the questions you should ask yourself before deciding on your limits and deductible. 

Once you have gathered the relevant information and thought about it, you’ll be in a much better position to decide, and I think you’ll find the decision becomes a little easier. Not easy, but a little easier.

Every year, most insured lawyers are asked by their carrier to complete a renewal application. Now, I can hear the collective moans coming from the offices before we even send out the renewal application. I’ll be the first to admit that the applications can be long and contain confusing questions. But keep in mind, this is the only time the carrier can get a complete picture of your firm, you need to take advantage of this. 

You need to let the carrier know what your practice is, how your practice is doing, and what you are doing to reduce risk in your office. You do this by answering all of the questions on the application completely. Unanswered questions or incomplete details only cause more questions and increase the back and forth between client and carrier. Take the time to read each question. Don’t assume you know what the carrier is asking for. 

There is one question on the application that I think causes concern, or at least causes me concern. And that is the area of practice grid. That’s the chart on the application that you are asked to put a percentage in, in the areas of where your firm is playing. Now, some carriers will ask for that percentage to be listed as a percentage of your time spent. Other carriers will ask for that percentage to be listed as a percentage of the revenue of the firm. Answering that question one way or the other will create a substantially different picture of your firm and definitely have an effect on the premium that you pay. 

So please, again, make sure that you’re reading each question and answering those questions completely. You’ll be glad that you did.

Many of our risk management video tips are surrounding the need for early reporting of claims and potential claims. A very important risk management tip. In this same vein, I want to talk about the angry client. 

Many insureds have had this situation where a client unexpectedly shows up at the office, or calls you on the phone to express their displeasure about something you did or something that has happened. 

Perhaps their case is taking too long. They haven’t heard from you in a few weeks, their phone call wasn’t returned, or they’re just not feeling the love from your office. Don’t just shrug this off as that’s just Joe being Joe, or they just want to blow off steam, or you convince yourself that nothing you did was wrong or incorrect and it’ll blow over. 

Unfortunately, many insureds take this approach and find themselves embroiled in a legal malpractice suit down the road. As with any claim or potential claim, report the issue, let the carrier know about it and let them decide if it meets the definition of a claim or potential claim. And if you don’t report it, at least call the malpractice hotline that may be available to you from your carrier. Most insurance carriers do provide a hotline for this type of situation and you would be well advised to use it. It is part of the benefits program of being an insured.

Don’t be the cautionary tale of an unhappy client.

Conflicts of interest have always been a concern to underwriters of legal malpractice insurance. Conflicts come in different shapes and sizes and can oftentimes be difficult to identify. Most attorneys won’t represent both parties in an auto accident or the husband and wife in a divorce matter, but sometimes are quick to jump into a business venture with a client. I don’t know why, but it seems to me that recently, attorneys are more willing to overlook or downplay the serious nature of getting into business with a client. 

Whether you want to invest in the client’s business or take an active role in operating the clients business, both are fraught with legal malpractice dangers. Usually, in the end, it’s just not worth the risk or the friendship to be in business with a client. Now, I can’t tell you not to go into business with a client, but I can tell you that if you do decide to do it, make sure you are well aware of the dangers of doing so and review and dissect all of the pros and cons. 

Review the insurance policy; how does this affect the insurance coverage? Talk to your insurance broker and other professionals such as your accountant and business consultant and call the legal malpractice hotline of your insurance company. You can discuss the situation with a legal malpractice attorney. This benefit is usually included in the policy for insureds of most insurance companies. Find out all the insurance information good and bad before jumping into business with a client.

In litigation settings, a lot of issues occur where a client comes into the lawyer’s office and says, “oh, well, I hurt my leg and I think we have a lawsuit against whoever for my injury.” But then you go on their social media and see they have a bunch of different pictures of themselves doing various things that might compromise the claim. Number one, you have to adequately scrutinize that to determine if the client really has a potential manner of telling you the truth. 

A lot of questions come up with “what do I tell my client?” “Can I advise my client to change their privacy settings?” Yes, you can advise your client to change the privacy settings for the use of social media and there you’ll see the PBA ethics opinion 2014-300. Now, it’s a little bit dated at this point, but it does give you a general overview about advising clients on the use of social media.

Meet Scott Eberle

Scott Eberle is on several insurance carriers defense panels. He’s been doing this type of work for many years. In my opinion, he’s one of the best presenters of legal malpractice and how to prevent it. So I think you’re in for a treat in terms of taking back some good information that you can implement in your firms.

“My name is Scott Eberle, I am an attorney at Burns White in Pittsburgh where my practice focuses on representation of professionals, lawsuits and ethics matters. I’m focused on representation of lawyers in legal malpractice lawsuits, as well as ethics issues either in front of the office of disciplinary Council, or just general ethics consultation. I help attorneys navigate the issues that come up in their practice and I’m able to provide guidance on what you need to do to follow the rules of professional conduct to not get yourself in potential trouble with the disciplinary council.”

Staying current with technology is included in comment eight of 1.1 competence rule. In other words, everyone, I think, is familiar with the 1.1 competence rule of professional conduct that says a lawyer shall provide competent representation to the client. Commenting to that rule 1.1 says to maintain the relevant knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including benefits and risks associated with relevant technology. 

A lot of the issues that come up today that I see are either lawyers’ use of technology as far as utilizing Facebook, Twitter and things like that in their own practice, as well as advising a client as to their use of technology. And there is a pretty good ethics PBA opinion that describes the lawyer’s role with regard to technology and the lawyer’s role in the use of technology on behalf of the lawyer and also representing the client and advising the client on the use of technology.

Meet Scott Eberle

Scott Eberle is on several insurance carriers defense panels. He’s been doing this type of work for many years. In my opinion, he’s one of the best presenters of legal malpractice and how to prevent it. So I think you’re in for a treat in terms of taking back some good information that you can implement in your firms.

“My name is Scott Eberle, I am an attorney at Burns White in Pittsburgh where my practice focuses on representation of professionals, lawsuits and ethics matters. I’m focused on representation of lawyers in legal malpractice lawsuits, as well as ethics issues either in front of the office of disciplinary Council, or just general ethics consultation. I help attorneys navigate the issues that come up in their practice and I’m able to provide guidance on what you need to do to follow the rules of professional conduct to not get yourself in potential trouble with the disciplinary council.”